Man allegedly raped by woman who fell pregnant now challenging the Children’s Act

JOHANNESBURG - A Johannesburg man is challenging provisions of the Children's Act he says have the effect of unfairly saddling male victims of rape with parental responsibilities over children born as a result thereof.

The challenge takes aim at the definition of a parent as it appears in the act. 

As it stands, the father of a child conceived as a result of the mother being raped is excluded therefrom. He says so too should the father of a child conceived as a result of his being raped, himself, be.

In the papers, the applicant in the case details how he, himself, was raped by a woman.

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He said he agreed to having sex with her on condition they used a condom, but that she removed it during the act without his consent.

Afterwards, he said, she sent him a text - a copy of which he has attached - apologising for “pressuring” him into having unsafe sex.

“I was confused, angry and felt violated as I had not consented to this action,” he said.

“I have been trying to grapple with what happened, and it has been difficult to receive assistance even from the police, as society generally believes that a man cannot be raped or sexually assaulted. I am currently undergoing counselling for this issue,” he revealed.

The woman ultimately fell pregnant, and the man says while he’s never met the child, and has no desire to “in light of the circumstances under which the child was conceived”, they are now locked in a legal battle over maintenance.

In its current form, he said, the definition in question violated his and other men’s rights to equality, and constituted discrimination on the grounds of gender.

“The legislature, when drafting the act, specifically the impugned provision, had in mind the common law definition of rape. However, the Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007 repealed the common law offence of rape, and replaced it with a new expanded statutory offence of rape. As such, men too are and can be victims of rape by women,” he explained.

He also said it infringed on the right to dignity and, by extension, family life, by imposing a “lifetime obligation” on a rape victim, and that it is not in the best interests of the child for parental rights to be assigned to him. 

“Each and every child deserves to be loved and cared for in the manner that is dignified … I have no intention to meet the child or be part of their life,” he said.

The man’s lawyer, Mabu Marweshe, believes the case could go a long way in destigmatising a subject still widely considered taboo.

As it stands, Marweshe says, the legislation still effectively assumes men cannot be the victims of rape.

“This will really be impactful - positively so - in that it might even encourage men to open up and approach the police - if possible - where they have become victims of rape”.

Marweshe said further that if successful, the case would ensure parity between male and female victims of rape.

“The law as it is - in terms of the Constitution, it’s clear the Children’s Act discriminates against men who are victims of rape. So, you’d then have parity being restored”.

Justice and Social Development ministers are cited as respondents in the case, as is the man’s alleged rapist. 

Marweshe said so far, none of them have filed any opposing papers.